common law. William the Conqueror, in abolishing the death penalty, substituted castration and the loss of eyes." Thereafter, in 1275 under the statute of Westminster I, the punishment, in a drastic step, was reduced to two years' imprisonment. Only if an "appeal of rape" was prosecuted by the victim within forty days was the old penalty of castration and loss of eyes inflicted. Ten years of this lenient treatment so increased the number of such crimes that the statute of Westminster II fixed the penalty at that of loss of "life and members"-a punishment thought to have some deterrent effect. While dismemberHent was subsequently eliminated, forcible rape was continued as a capital offense and decreed to be one without benefit of clergy in 1576," remaining such until 1861.10

14

Commentators upon the common law were generally agreed as to the definition of the crime: Unlawful carnal knowledge of a woman with force and against her will." The element of unlawfulness, of course, excluded such sexual behavior as took place within the marital relationship," including common law marriages," and marriages which were in fact illegal. The element of "carnal knowledge" at early common law,15 was satisfied by the slightest penetration, but at a late date proof of emission was also required.16 This matter has been resolved in most American jurisdictions by statutes specifying that proof of penetration alone is sufficient." In the absence of such statutes a few precedents would seem to require proof of something beyond penetration in order to convict," but these cases are not wholly satisfactory in their reasoning. "Force," which has always been a common law element of the crime, must precede the carnal knowledge in order to satisfy the requirements of the crime. This force may either consist of actual violence, or it may consist of what is termed "constructive" force, as when no actual force is used, but a threat of force is employed to induce sufficient fear to accomplish the result. If the force is actual, the amount required must be sufficient to overcome the victim's resistance, and consequently some force in addition to that naturally necessary to complete the sexual act is required to establish criminal responsibility. But when fear or terror is used or the victim is deemed to be incapable of giving her consent, no more force is required than that naturally necessary to complete the act.

The need for detailed statutory definition was especially indicated by two areas of conflict of opinion on the requirements of the common law crime. One of these areas of conflict was concerned with the requirement that the act take place "against her will"; the other was concerned with the fraudulent procurement of her consent. As to the first area of conflict, the statute of Westminster I used the words "against her will"; that of Westminster II "where she neither consented before or after." Most of the common law commentators adhered to the first definition," but a few later ones adopted the second.25 Accordingly, where the victim was an idiot or imbecile and therefore incapable of consent, a few cases held that there was no rape. While most modern juris

26

Pollock & Maitland, History of English Law 490 (2d ed. 1899).

Statute of Westminister I, 1275, Edw. I, c. 13; 1 Hale, Pleas of the Crown 631. *Statete of Westminister II, 1285, 13 Edw. I, c. 34; 4 B1. Comm. *212.

*1. Eliz. e. 7, 8 14 (1575–1576).

Criminal Consolidation Act (1861) abolished the death penalty for all but four crimes: murder, piracy, treason, and destruction of public arsenals and docks. Report from Select Committee on Capital Punishment, § 40 (H.M. Stationery Office 1930).

4 B1. Comm. 211; 2 Co. Inst. c 13; 3 Co. Inst. 60; 1 East, Pleas of the Crown 434; 1 Hale, Pleas of the Crown 628.

A husband may be an accessory (common law principal in the second degree) to rape upon his wife. People v. Meli. 193 N.Y.S. 365 (Sup. Ct. 1922).

- People v. Pizzura, 211 Mich. 71, 178 N.W. 235 (1920).

Draughn v. State, 12 Okl. Cr. R. 479, 158 P. 890 (1916). Contra: Lee v. State, 44 Tex Cr. R. 354, 72 S.W. 1005 (1902).

1 East. Pleas of the Crown 436-638.

2 Id at 435-440; Rex v. Burrows, Russ. & Ry. 519, 168 Eng. Rep. 928 (Crown 1823). 9 Geo. IV. c. 31, § 18, 24 & 25 Vict. c. 100. § 63, abolished this requirement.

State v. Grav, 8 Jones 170 (N.C. 1860). See, Lujano v. State, 329 ex. Cr. R. 414, 24 W 97 (1893): Blackburn v. State, 22 Ohio St. 102 (1871).

People v. Connor, 126 N.Y. 278, 27 N.E. 252 (1891).

Don Moran v. People, 25 Mich. 355 (1872).

See Regina v. R. Fletcher, 8 Cox C.C. 831, Bell 63, 169 Eng. Rep. 1168 (Crown 1591.

= See note 32 supra.

= See note 33 supra.

* See note 36 supra.

1 Bishop. New Criminal Law 554: Stephen, Digest of Criminal Law, Art. 351 (7th ed. 1926); Wharton, Criminal Law, § 682 (12th ed. 1932).

Rezina v. C. Fletcher [1866] 1 C.C.R. 39. But cf. Regina v. R. Fletcher. 8 Cox C.C. 1 Bell 63, 169 Eng. Rep. 1168 (Crown 1859). See also Regina v. Barratt, [1873] 2 CC.R. 81.

dictions have held that it is no defense that the victim was insane, intoxicated, asleep, imbecilic or idiotic at the time of the act, there has arisen sharp conflict on the point whether the defendant, to be criminally liable, must have been aware of the victim's condition. Consequently, some jurisdictions have required knowledge of the infirmity by defendant as an element of the crime, but this view does not appear supportable where actual force is employed and there is no claim of consent.

30

The second area of conflict stems from the situation where fraud is used to effect the act, instead of force or fear. Of course this situation was not covered by the common law crime, but rules have been developed through judicial interpretation of the element of consent. In any event, when the misrepresentation directly concerns the nature of the act of intercourse the crime is complete when the act takes place. For example, a physician has carnal knowledge of a patient after falsely inducing her to submit under the mistaken belief that she is undergoing surgery." But when the victim is induced to consent by the false representation that intercourse is necessary as medical treatment, it not rape.* Application of this distinction between fraud in the fact and fraud in the inducement has resulted in some judicial puzzlement in the embarrasing situation where the defendant impersonates the victim's husband. A minority of modern jurisdictions have held that this constitutes rape, on the stated ground that the "consent given was for connection with a different person." "31 But the majority of cases have held such reprehensible conduct was not criminal because the fraud was concerned not with the act of intercourse, but merely with the collateral matter of who was performing the act.

The proposed Federal statute is more complete than those of most states on the question of rape [§ 1641] and general provisions [§ 1648] and definitions [§ 1649] relating to rape. Under a different name, accomplishing the crime by impersonation-a problem left to conflicting judicial interpretation at common law is made criminal as Gross Sexual Imposition [§ 1642 (b)]. Many states have by statute characterized this conduct as rape.

33

The most significant requirement viz., that of corroboration, is adopted by the Federal statute [§ 1648 (5)]. This is a rare requirement adopted only in New York and Iowa. Our experience with this requirement leaves much to be desired in New York. In 1969, there were 2120 cases of rape reported to the police and only 18 convictions. My personal criticism appears in an article in the New York Times Magazine, Sunday, January 30, 1972. Appendix A, post. The reasons for this opposition are set forth at length in an article The Case For Repeal of the Sex Corroboration Requirement in the Brooklyn Law Review. Appendix B, post. An editorial in the New York Times, February 1972 supports generally these views. Appendix C, post.

Appendix A

(Proposed § 1641 Federal Criminal Code)

[From the New York Times Magazine, Jan. 30, 1972]

Q. IF YOU RAPE A WOMAN AND STEAL HER TV, WHAT CAN THEY GET YOU FOR IN NEW YORK?

A. STEALING HER TV

(By Martha Weinman Lear)

Though corroboration is not required in any category of crimes other than sex offenses, it is required in certain other criminal situations. In a bribery case, for example, Accomplice A cannot be the sole witness against Accomplice B,

27 Regina v. Camplin, 1 Car. & K. 746, 174 Eng. Rep. 1016 (1845); Commonwealth v. Burke, 105 Mass. 376 (1870).

29 Ignorance of condition, defense; People v. Crosswell, 13 Mich. 427 (1865); State v. Helderle, 186 S.W. 696 (Mo. Sup. 1916). Contra: People v. Griffin, 117 Cal. 583, 49 P. 711 (1897): State v. Dombroski, 145 Minn. 278, 176 N.W. 985 (1920).

20 Regina v. Flattery, 13 Cox C.C. 388: Regina v. Stanton, 1 Car. & K. 415, 174 Eng. Rep. 872 (Crown 1844) Pomeroy v. State, 94 Ind. 96 (1883).

20 Don Moran v. People, 25 Mich. 356 (1872).

Regina v. Dee. 15 Cox C.C. 579. See also State v. Shepard, 7 Conn. 54 (1828). Regina v. Barrow. [1868] 1 C.C.R. 156; Regina v. Clark, 6 Cox C.C. 412; Lewis v. State. 30 Ala. 54 (1857); State v. Brooks, 76 N.S. 1(1877); Wyatt v. State, 2 Swan. 394 (Tenn. 1852).

33 Ala., Ariz., Cal., Idaho, La., Mont., N.C., N.D., Okl., S.D., Tenn. and Utah.

since accomplices are held to be untrustworthy as witnesses. The analogy to rape cases is instructive.

"I've traced the corroboration requirement back to 1860, when I first found it coming into the law," says Frederick J. Ludwig, Chief Assistant District Attorney in Queens. Ludwig, a former law professor, recently wrote a paper for The Brooklyn Law Review urging the repeal of corroboration. "Why was the law passed?" Well, maybe one of our prominent senators in those days was accused of molesting a barmaid-maybe he actually did molest a barmaid-and he and his learned colleagues passed this two-witness law to protect themselves ... this capricious law which does not apply in any other crime.

"Established public figures, such as politicians, have great fear of 'women's vengeance.' These men don't want any charge ripening into an indictment. It can be ugly. It can ruin a politician. Also, you have these situations where the opposition is out to get him, to frame him, and he feels this need of protection by corroboration. But, after all, if a woman wants to entrap a man, she can easily accuse him of larceny, burglary, robbery. In sex cases, as in these other cases, the credibility of the witness should be the sole requirement. I don't subscribe to the inherent implication that females are less trustworthy than males in sexual situations. In fact, the whole thing should be thrown out on the same basis as the Utah law on administration of estates [wherein the Supreme Court recently declared unconstitutional a law that gave males preference over females of equal claim] as a denial to women of equal protection under the law." His sentiments are shared. Feminists, of course, are outraged by the implication of the two-witness rule. They have said that rape is the issue they intend to politicize this year, and have been lobbying for repeal of corroboration ("O.K., so it's a law-and-order position," says feminist Susan Brownmiller, who is writing a book about rape. "We never said we were for anarchy.") Family Court Judge Millard L. Midonick recently appealed to the State Legislature to correct "the miserable state of the law," declaring that the corroboration requirement "evidences an irrational belief in the dishonesty of the woman who claims to have been sexually assaulted."

Possibly a correction is forthcoming, though hardly one to hearten the feminists. For the past three years, bills to modify the law have been defeated in Albany. Others are coming up soon. One, sponsored by Assemblyman Alan Hochberg, Bronx Democrat, veers close to repealing corroboration, and has little chance.

But the bill seems to be shaped, as well, by the ambivalences of men. The crime of rape outrages them; but something in the bloodstream seems to flow back in time and sympathy to that senator who may or may not have dallied with a barmaid, and to resist a clean break with corroboration.

Appendix B

(Proposed § 1641 Federal Criminal Code)

THE CASE FOR REPEAL OF THE SEX CORROBORATION REQUIREMENT IN NEW YORK (By Frederick J. Ludwig†)

INTRODUCTION

Penal Law section 130.151 has virtually nullified enforcement of all statutes in this state relating to rape, sodomy, sexual misconduct and sexual abuse. This section requires that there shall be no conviction for any sex offense, except sexual abuse in the third degree, "solely on the uncorroborated testimony of the alleged victim." A less frequently invoked provision requiring corroboration relates to adultery and incest. If the legislature had intended that such sexual behavior no longer be made criminal, it would have been a simple thing to omit ten of the eleven sex offenses defined in article 130 when the new Penal Law was proposd in 1965. If the legislature had intended that these ten sex crimes be prosecuted, then, to effectuate that intent, something must be done about the provision containing the corroboration requirement.

What group of persons are victims of these sex offenses? A study in the City of New York, of the ages of 1,395 victims of the offenses that now appear in

†Chief Assistant District Attorney, Queens County; former Professor of Law, St. John's University and University of Nebraska.

1N.Y. Penal Law § 130.15 (McKinney 1967) [hereinafter cited as Penal Law]. Penal Law § 255.30.

article 130 of the current Penal Law, showed that the average age for all of these victims was thirteen years eight months.

"The largest number of victims of forcible rape fell in the 17-year-old group; of statutory rape in the 15-year group; of attempted rape in the 10-year group; of carnal abuse in the 8-year-old group; and of impairing morals in the 11-yearold group."

The report observed: "Of all aspects of this problem of sex offenses there is none that can stir the observer more deeply than the age of the victim."

The new statutory requirement of corroboration, which took effect September 1, 1967, covers a dozen sex offenses. Prior to that time, the only statutory requirement of corroboration related to the single category of rape."

I. THE OBSTACLE OF CORROBORATION

The corroboration requirement has nullified the prosecution of practically every sex offense in the current Penal Law. In addition, the requirement has produced three anomalies. One, the prosecution of other serious non-sex offenses is nullified. Two, the single sex offense, explicitly excluded from the requirement of corroboration by statute, has been included by judicial construction. Three, the requirement of corroboration makes conviction for a related non-sex crime more difficult where a defendant attempts or completes the sex crime for one who desists.

A. Prosecution Nullified

The sex corroboration provision contained in article 130 relates to "any offense defined in this article, or an attempt to commit the same." The impact of this provision, however, has an identical nullifying effect upon the enforcement of statutes defining such non-sexual criminal conduct as assault, possession of weapons, and endangering the welfare of a child. This is the case when the non-sex offense constitutes part of, or is inextricably interwoven with, a sex offense requiring corroboration.

A brief explanation must be made for this extension of the requirement of corroboration beyond the confines of article 130 and in the teeth of the explicit language contained in the corroboration section, i.e., "any offense defined in this article. . . ." That explanation is bound up with the judge-made "doctrine of circumvention," propounded by the highest court of this state. These cases involved the corroboration requirement in the former Penal Law when the commission of rape was interwoven with the commission of non-sex crimes. In People v. LoVerde, the defendant, charged with rape, was acquitted but convicted of a lesser offense, endangering the morals of a minor. The court of appeals, in reversing the conviction, said:

"Were we to hold that no corroboration was necessary to support the conviction of the crime as charged in this indictment, then a prosecutor might easily circumvent the requirement of corroboration necessary for a conviction of misdemeanor rape simply by charging instead the impairment of the morals of a minor, as he did here. The law may not be so circumvented." "

.

Subsequently, in the landmark case of People v. English," the court of appeals reversed the conviction for non-sex crimes committed by a defendant indicted for rape "on the ground of a lack of the corroboration required by law for such convictions when testimony as to an actual rape has been received. . . ." The rationale of English was included in the codification of the new Penal Law."

B. Judicial Construction

11

The provision requiring corroboration for sex offenses provides that "[t]his section shall not apply to the offense of sexual abuse in the third degree." 13 In

87 N.Y.2d 114, 164 N.E.2d 102, 195 N.Y.S.2d 835 (1960).

Id. at 116, 164 N.E.2d at 103. 195 N.V.S.2d at 836.

10 16 N.Y.2d 719. 209 N.E.2d 722, 262 N.Y.S.2d 104 (1966).

11 Id. at 720, 209 N.E.2d at 722. 262 N.Y.S.2d at 105.

13

12 Denzer & McQuillen, Practice Commentary to Penal Law § 130.15, at 278-79 (McKinney 1967).

13 Penal Law § 130.15.

People v. Doyle," the defendant was charged under the new Penal Law in a six-count indictment with robbery, larceny, two counts of assault, endangering the welfare of a child, and sexual abuse in the third degree. At the outset of the trial the district attorney stated that the complainant would testify to completed acts of intercourse and oral sodomy; that there was no corroboration of those acts; and that for that reason the defendant had not been indicted for rape and sodomy. The prosecutor then consented to dismissal of the five counts charging robbery, larceny, assault, and endangering the welfare of a child. However, he did not consent to dismissal of the count charging sexual abuse in the third degree, because he wanted the appellate courts to have a clear-cut issue concerning the validity of a conviction on that count, since there was proof of a consummated rape and sodomy but no corroboration of the complainant's testimony. The trial court granted the defendant's motion to dismiss the count of sexual abuse in the third degree, citing People v. Radunovic authority. The appellate division affirmed on the basis of the "doctrine of circumvention," notwithstanding the explicit language of exclusion contained in the statute.

15

as

Radunovic was decided subsequent to the passage of the new Penal Law, but involved a crime committed prior thereto. On the basis of the victim's uncorroborated testimony relating to the rape, the defendant was convicted of assault in the third degree. The court of appeals, reversing the conviction, said that the issue was:

"Whether corroboration is required of the testimony of a female that there was a completed act of rape, in instances where the People have elected to prosecute on the basis of a crime ostensibly unrelated to a charge of rape or where the jury has found a defendant guilty of an unrelated crime upon evidence which, if believed, would render the accused guilty of rape or assault with attempt to commit rape. The Legislature has currently provided that corroboration of the testimony of complainant is required to sustain charges of adultery and incest *** promoting prostitution *** and of the sexual offenses punishable under article 130 of the Penal Law *** which include sexual misconduct *** rape * * * sodomy *** and sexual abuse in the first and second degrees * * * This well-defined legislative policy has been extended by the courts to endangering the health and morals of a minor, assault with intent to commit rape and attempted rape where the charge is supported by evidence of a consummated rape. * * *” 16

In a series of recent cases," the court of appeals has reaffirmed its holding in Radunovic. However, the court has made it clear that the "doctrine of circumvention" will not be extended to those cases where "there is no necessary interdependence between the [sex and non-sex] crimes.

" 18

C. Conviction for Related Non-Sex Crime Difficult

The crowning anomaly of the statutory requirement of corroboration, in conjunction with the judge-made "doctrine of circumvention," requires a court on one hand to insist upon corroboration where the defendant consummates a sex crime committed in connection with an assault. On the other hand, the identical defendant who commits an assault, but abandons commission of the sex crime, may be convicted without the testimony of his victim being corroborated. An incentive, quite unintended by the legislature, is supplied to a would-be sex criminal to consummate, or attempt to consummate, his sex crime. As Judge Shapiro pointed out in People v. Sigismondi:

"[O]ne who responds to the entreaties of the assaulted female, and forgoes his desire to rape her, may be convicted of attempted rape or of an assault with intent to commit the crime of rape, but one who is completely ruthless and proceeds "to finish the job" by actually raping his victim is immune from conviction." 19

14 21 App. Div. 2d 490, 300 N.Y.S.2d 719 (2d Dep't 1969). 18 21 N.Y.2d 186, 234 N.E.2d 212, 287 N.Y.S.2d 33 (1968). 10 Id. at 189-90, 234 N.E.2d at 213-14. 287 N.Y.S.2d at 35.

17 See, e.g.. People v. Young, 22 N.Y.2d 785, 239 N.E.2d 560. 292 N.Y.S.2d 695_(1968); People v. Lennon. 22 N.Y.2d 677, 238 N.E.2d 756. 291 N.Y.S.2d 369 (1968); People v. Jenkins, 22 N.Y.2d 675, 238 N.E.2d 755. 291 N.V.S.2d 368 (1968).

18 People v. Moore, 23 N.Y.2d 565, 567, 245 N.E.2d 710, 711, 297 N.Y.S.2d 944, 945 (1969).

1949 Misc. 2d 1, 9. 266 N.Y.S.2d 724, 732 (Sup. Ct. 1966), aff'd, 27 App. Div. 2d 937, 250 N.Y.S.2d 912 (2d Dep't). aff'd, 21 N.Y.2d 186, 234 N.E.2d 212, 287 N.Y.S.2d 33 (1967).